Can debate transpire before a public hearing?

[Joibren]

Can discussion/debate transpire on an item being introduced for a public hearing? Our elected body considered an item captioned, “Consider the introduction of an ordinance to change the organizational structure of various departments and calling a public hearing on ‘date’.” The body was informed that it could not discuss or debate the particulars of the agenda item because the caption did not include the words “and discuss”. Does the item require that the public hearing is called before discussing the matter? If so, does this preclude the body from making changes to the proposed ordinance before the public hearing? Lastly, can either minor or substantial changes be made to an ordinance at the public hearing to adopt the ordinance?

[Josh Martin]

11 hours ago, Joibren said:

Can discussion/debate transpire on an item being introduced for a public hearing? Our elected body considered an item captioned, “Consider the introduction of an ordinance to change the organizational structure of various departments and calling a public hearing on ‘date’.” The body was informed that it could not discuss or debate the particulars of the agenda item because the caption did not include the words “and discuss”. Does the item require that the public hearing is called before discussing the matter? If so, does this preclude the body from making changes to the proposed ordinance before the public hearing? Lastly, can either minor or substantial changes be made to an ordinance at the public hearing to adopt the ordinance?

The answers to this question will depend upon the elected body's own rules in regard to public hearings, and possibly also rules in applicable law on this subject. RONR is written for all sorts of assemblies, not just public bodies. As a result, it has no rules requiring that a public hearing be held at all, let alone rules regarding what can or cannot be done before, during, or after a public hearing.

Ultimately, no rule in RONR would prohibit discussing the item prior to the public hearing or from making changes to the proposed ordinance before, during, or after the public hearing, although the body's own rules or applicable law may well provide otherwise.

Edited October 13, 2020 at 01:53 PM by Josh Martin

[Joibren]

Josh,

Thanks for your response. First let me extend an apology for the lengthiness of this discussion (I really need guidance). Below are our rules. Unless I am misinterpreting something I don’t see anything that would prohibit discuss prior to introducing an item. Your response is appreciated and valued.

Our rules only state, “All proposed ordinances shall be introduced in writing and in the form required for adoption. All proposed ordinances shall be read by title when introduced and published in full, in summary, or by title within five days after introduction. No ordinance shall be considered for final passage until it has laid over at least two weeks from the date of introduction and a public hearing has been held on the ordinance.”

LA RS 42:14 D. states, “D. Except school boards, which shall be subject to R.S. 42:15, each public body conducting a meeting which is subject to the notice requirements of R.S. 42:19(A) shall allow a public comment period at any point in the meeting prior to action on an agenda item upon which a vote is to be taken. The governing body may adopt reasonable rules and restrictions regarding such comment.”

LA RS 42:19

§19.  Notice of meetings

A.(1)(a)  All public bodies, except the legislature and its committees and subcommittees, shall give written public notice of their regular meetings, if established by law, resolution, or ordinance, at the beginning of each calendar year.  Such notice shall include the dates, times, and places of such meetings.

(b)(i)  All public bodies, except the legislature and its committees and subcommittees, shall give written public notice of any regular, special, or rescheduled meeting no later than twenty-four hours, exclusive of Saturdays, Sundays, and legal holidays, before the meeting.

(ii)(aa)  Such notice shall include the agenda, date, time, and place of the meeting.  The agenda shall not be changed less than twenty-four hours, exclusive of Saturdays, Sundays, and legal holidays, prior to the scheduled time of the meeting.

(bb)  Each item on the agenda shall be listed separately and described with reasonable specificity.  Before the public body may take any action on an item, the presiding officer or his designee shall read aloud the description of the item except as otherwise provided in Subitem (dd) of this Item.

(cc)  Upon unanimous approval of the members present at a meeting of a public body, the public body may take up a matter not on the agenda.  Any such matter shall be identified in the motion to take up the matter not on the agenda with reasonable specificity, including the purpose for the addition to the agenda, and entered into the minutes of the meeting.  Prior to any vote on the motion to take up a matter not on the agenda by the public body, there shall be an opportunity for public comment on any such motion in accordance with R.S. 42:14 or 15.  The public body shall not use its authority to take up a matter not on the agenda as a subterfuge to defeat the purposes of this Chapter.

(dd)  If an agenda of a meeting of a governing authority of a parish with a population of two hundred thousand or more according to the latest federal decennial census or municipality with a population of one hundred thousand or more according to the latest federal decennial census contains more than fifty items, the governing authority may take action on items listed on a consent agenda without reading the description of each item aloud.  However, before any action is taken on items listed on a consent agenda, the governing authority shall allow a public comment period.  Any item listed on a consent agenda may be removed from the consent agenda by an individual member of the governing authority if a person objects to the presence of the item on the consent agenda and provides reasons for individual discussion at the meeting.  The name of the person who objects to a consent agenda item and the reasons for the objection shall be included in the minutes of the meeting.

(iii)  Following the above information there shall also be attached to the written public notice of the meeting, whether or not such matters will be discussed in an executive session held pursuant to R.S. 42:17(A)(2):

(aa)  A statement identifying the court, case number, and the parties relative to any pending litigation to be considered at the meeting.

(bb)  A statement identifying the parties involved and reasonably identifying the subject matter of any prospective litigation for which formal written demand has been made that is to be considered at the meeting.

(iv)  In cases of extraordinary emergency, such notice shall not be required; however, the public body shall give such notice of the meeting as it deems appropriate and circumstances permit.

(2)  Written public notice given by all public bodies, except the legislature and its committees and subcommittees, shall include, but need not be limited to:

(a)  Posting a copy of the notice at the principal office of the public body holding the meeting, or if no such office exists, at the building in which the meeting is to be held; or by publication of the notice in an official journal of the public body no less than twenty-four hours, exclusive of Saturdays, Sundays, and legal holidays, before the scheduled time of the meeting.  If the public body has a website, additionally by providing notice via the Internet on the website of the public body for no less than twenty-four hours, exclusive of Saturdays, Sundays, and legal holidays, immediately preceding the meeting.  The failure to timely post notice via the Internet pursuant to this Subparagraph or the inability of the public to access the public body's website due to any type of technological failure shall not be a violation of the provisions of this Chapter.

(b)  Mailing a copy of the notice to any member of the news media who requests notice of such meetings; any such member of the news media shall be given notice of all meetings in the same manner as is given to members of the public body.

B.  Reasonable public notice of day to day sessions of either house of the legislature, and of all matters pertaining to such meetings, including but not necessarily restricted to the content of notices, quorums for the transaction of business, proxy voting, viva-voce votes, and recordation of votes, shall be governed by the provisions of the Louisiana Constitution, the rules of procedure of the Senate and the House of Representatives, and the Joint Rules applicable to both houses.  Reasonable public notice of meetings of legislative committees and subcommittees shall be given in accordance with such rules as are adopted by the respective houses for the purpose.

 

[Josh Martin]

3 minutes ago, Joibren said:

Thanks for your response. First let me extend an apology for the lengthiness of this discussion (I really need guidance). Below are our rules. Unless I am misinterpreting something I don’t see anything that would prohibit discuss prior to introducing an item. Your response is appreciated and valued.

Since the answer to this question involves the interpretation not only of your body's own rules but also applicable law, I really don't think it would be appropriate for me to hazard a guess. This question is beyond the scope of RONR and this forum. I would advise consulting an attorney.

[Joibren]

Thanks Josh.

[Gary Novosielski]

On 10/12/2020 at 10:37 PM, Joibren said:

Can discussion/debate transpire on an item being introduced for a public hearing? Our elected body considered an item captioned, “Consider the introduction of an ordinance to change the organizational structure of various departments and calling a public hearing on ‘date’.” The body was informed that it could not discuss or debate the particulars of the agenda item because the caption did not include the words “and discuss”. Does the item require that the public hearing is called before discussing the matter? If so, does this preclude the body from making changes to the proposed ordinance before the public hearing? Lastly, can either minor or substantial changes be made to an ordinance at the public hearing to adopt the ordinance?

I think the word discuss is included within the meaning of the word consider.  How can a body consider something without discussing it, apart from sitting silently and thinking about it, which would be absurd.

[Richard Brown]

On 10/12/2020 at 9:37 PM, Joibren said:

Can discussion/debate transpire on an item being introduced for a public hearing? Our elected body considered an item captioned, “Consider the introduction of an ordinance to change the organizational structure of various departments and calling a public hearing on ‘date’.” The body was informed that it could not discuss or debate the particulars of the agenda item because the caption did not include the words “and discuss”. Does the item require that the public hearing is called before discussing the matter? If so, does this preclude the body from making changes to the proposed ordinance before the public hearing? Lastly, can either minor or substantial changes be made to an ordinance at the public hearing to adopt the ordinance?

Agreeing with Mr. Martin's response, I will add that pursuant to RONR the opportunity for discussion (debate) is part and parcel of the process of considering a motion, whether it be a proposed ordinance, a resolution, or whatever.  Being a Louisiana resident active in political affairs and attending many city and parish council meetings, I assure you that the custom, whether stated in the rules or not, is that when an ordinance or resolution is up for final passage it is open for debate.  If you have no local rule to the contrary and if RONR is your parliamentary authority, then debate is absolutely in order once the motion (usually an ordinance or resolution) is before the body for final adoption.    In fact, the Louisiana Open Meetings law pretty specifically prohibits a majority of the council members from discussing the proposed legislation among themselves outside of a council meeting.  The whole purpose of the council meeting is for the council to consider (and debate if anyone desires to do so) the matter at a public council meeting.  Of course, if no council member desires to speak on the matter, there will be no debate.... just as in the case of any other club meeting where someone makes a motion that everyone supports and no one sees any need to speak on it.

However, I note that you prefaced your question by mentioning that it is an item being introduced for a public hearing.   it is important to know whether this piece of legislation was up for first reading or for final passage. It is true that many (probably most) city and parish councils have at least a two-step process for adopting an ordinance.  It is first introduced for first reading at which, pursuant to most local rules, no debate is permitted.  The debate takes place at the second reading, which is after the layover period.  So, it is customary that no debate is permitted when legislation is on the agenda for first reading.  The local rules (or the city or parish charter) quite likely provide that there shall be no debate on first reading.  Even if there is no written rule on the matter, it is pretty much the custom.

It is also common for an ordinance, particularly some zoning ordinances, requests for demolition of neglected property, etc to be on the agenda at one meeting for the sole purpose of setting a public hearing to take place at a future meeting.  At the first meeting limited  discussion might take place as to the date to be set for the public hearing, but not as to the merits of the actual demolition or zoning change itself.

Much of this probably is controlled by the city or parish charter and whatever local rules the governing body has adopted as well as the customs followed by the body.

 

[Joibren]

Richard,

Thanks.  It was submitted for the first reading.  Your response gives me more clarity.